Informed consent?

[denny]

http://www.timesonline.co.uk/article/0,,2-1888035,00.html

I don't like this one at all. Okay, people who get so pissed that they can't remember their own names are obviously putting themselves in a vulnerable condition through their own choice, but then I'm not one to lecture about the perils of substance abuse. Regardless of the state you're in though, consent is still a positive action - saying 'yes' - the lack of a negative action is not the same thing. And informed consent requires the person giving their consent to be in a position to judge the consequences of their decision...

I dunno, she decided to get that hammered, but even so... I think the guy is at best an idiot and at worst a shit for sleeping with her in that state even if she did come on to him, and obviously the potential very clearly exists for it to have been entirely non-consensual. The problem is that there's not really any way to tell (is there?), if she's going to get herself into that much of a state that she can't remember anything about it.

I suppose I can take this as ratification of my personal policy of not sleeping with anybody who seems to be drunk, unless we have a well-established sexual relationship already. The fact remains that this shift in legal policy seems worrying to me... I can see more scope for it going wrong than right.

Comments

[zellah.livejournal.com]

I've been in that kind of situation before, but I basically went home with someone and waited until the morning for when they sobered up to return their advances.

There's a VERY fuzzy line in that kind of situation but I'm a big supporter of the 'not getting so drunk you lose all judgement'.

[synthclarion.livejournal.com]

That said, you can't make drunken consent not count - it opens up an easy way to get someone convicted out of malice.

girl wants to fuck guy over.
girl drinks alcohol but pretends she's more drunk than she is.
girl and guy sleep together.
girl goes to police next day.
guy satisfactorily proves (somehow) to the court that consent was given.

it is not legally reasonable with our current system to allow the girl to essentially revoke consent, by stating she was as drunk as she was acting when she gave consent and that the guy should have realised this. no test can prove how drunk she was - only that she had drunk some alcohol, which she indeed had.

[grandwazooo.livejournal.com]

The girl who wants to "fuck a guy over" doesn't even need to be drunk at all - she just has to wander down the the cop-shop the next morning and file a complaint and if she can't rustle up any signs of a struggle she only has to say "I was so scared I just lay there/did what he said".
- sure, it may not result in a conviction, but it will make his life a nightmare for a few months.

[naranek.livejournal.com]

Frankly, I think it's got to be the right answer. Any other decision would be a minefield; one really can't justify a conviction on a criminal offence based on a lack of evidence of innocence, especially when all the evidence is being provided by the unlucky defendant. As it's been reported, I really can't see anything at all here to hang a case on - even on the balance of probabilities; I'm fairly surprised that the crown opted to prosecute - unless the defendant's a very shady character indeed, no sane jury should believe that his behaviour amounts to anything more than deeply unpleasant and/or deeply reckless, and I don't think anyone is really proposing that being stupid and unpleasant should be a serious criminal offence (or are we?).

I presume it was an attempt to see just how far the `reckless as to consent' clause would go, and I'd hope it doesn't go very far at all; it's a bad idea, it's bad law, and it'll lead to bad convictions.

Erm, </rant>. Sorry.

[dennyd.livejournal.com]

no sane jury should believe that his behaviour amounts to anything more than deeply unpleasant and/or deeply reckless, and I don't think anyone is really proposing that being stupid and unpleasant should be a serious criminal offence

I can sometimes see a case for making stupidity a capital crime ;)

[snoof.livejournal.com]

The prosecution in the rape case had said it could not go on after the woman admitted that she could not remember whether she gave consent or not or whether sex had taken place. (From the article.)

It doesn't say what the guy said happened, but this is not a rape case. It may be a case OF rape, but it's not a rape case. She can't remember what happened and is basing the idea that it was rape on whether or not she thinks she'd sleep with him (She told the jury that she had no recollection of events but insisted that she would not have agreed to sex with the man).

You can't convict people based on what a drunk-at-the-time person thinks may have happened while they were so off their head they can't even remember. The only useful witness in this case will have been the guy, and who on earth is going to be able to prove him wrong if he says she said yes?

Also, she says she was unconscious (and if she was then ok, it's fucking creepy if he went through with it) but who's to say she wasn't fully conscious in that drunk-people way they'll later never remember? She can't claim she was unconscious because of how much she drank, and in the same breath claim she has any idea what went on.

[dennyd.livejournal.com]

Yeah, there are two threads to this story... one is the specific case, and the other is the more general legal point they seem to be making. I don't see how they could have decided differently in this case, but the extrapolation makes me edgy.

I dunno, I still think he was an ass for sleeping with her even if she did consent in that state, so to some extent he was asking for it. On the other hand, see other comments here about malicious abuse of the law, on the gripping hand see replies to those comments. It's never going to be a simple issue to legislate for and make judgements on, I suppose.

[kelemvor.livejournal.com]

Are we even sure that there was any form of sexual intercourse? The article doesn't say.
Scenario: She's passing-out drunk on the floor. He sees her and goes to help her up. She's heavier than he expected, so he ends up having to drag her up the wall. This hits some of her buttons, and she starts making the sounds of enjoyment, before opening her eyes to see someone invading her space, and leaps to a conclusion.
Please note that I'm not condoning the rape of drunken women. It's just that to turn someone into public enemy number one, all that's required is that one four-letter word. (I have also encountered someone who had a flexible view of the word "No", so I have no time for actual rapists.)
I think that this case also raises the issue of naming defendants in sexual offence cases. The plaintiff gets legally-enshrined anonymity, but the defendant's name gets plastered all aover the place. The anonymity ought to apply to both parties, until a conviction.

[burritob.livejournal.com]

I share that policy - it's the smart thing to do. Unfortunately, we don't always do smart things.

Required consent is a sane and rational benchmark - informed consent, however, brings with it a whole raft of problems. As you correctly point out, the latter requires the person giving their consent to be capable of percieving (and accepting) the consequences of that action. Who decides whether or not a person possesses that capability?

If a very drunk girl gives consent to a sober man, we might say that it's his responsibility to say no - it's probably the ethical thing to do. How about if a hot guy gets very drunk and letches onto a real minger? Should she fob him off, on the grounds that he wouldn't give her a second look if he was sober? What do we do when both the guy and the girl are inebriated past the point of rational decisionmaking?

If we are to say that an inebriated person is legally incapable of giving their consent, the offence would become statuatory rape - and that's not something we should be special-casing. Should we require sobriety tests before an individual can enter into a binding contract? How about gambling? Using a credit card?

So I don't think this really indicates a shift in legal policy, although it may well be the first time the precedent has been expressed by the High Court. Indeed, a decision to the contrary would be a great deal more significant.

Considering how this relates to drink spiking in the commission of rape is another interesting point, but that's a whole other discussion :)

[davefish.livejournal.com]

There was, the defendant said that there was sex and that it was consensual.

[hilarita.livejournal.com]

If you're both drunk, I can see reasonable grounds for throwing it out of court, as the bloke then isn't in a position to know that a girl's consent is only the result of being pissed out of her mind. But in law, consent means 'informed consent', and it is possible to be too drunk to give it. The onus is then on the sober party to ascertain that the drunk party really is able to consent to the acts involved.

[dennyd.livejournal.com]

I guess the problem if it all goes wrong is that you need to not only ascertain it, but be able to legally prove it. Unless you've got a signed Agreement To Copulate* of some kind then it all gets a bit 'your word vs. theirs' at that point.

Interesting point about 'if you're both drunk'. I wonder how often it happens that the girl is drunk, but the guy is completely sober? I would expect there to have been a level of drinking on both sides usually, so that makes it even less likely that the (potential/alleged) offense is prosecutable.


* the Post Office could sell some kind of standard form? :-P

[naranek.livejournal.com]

The trouble with that is that you then get into interesting discussions about people with psychological problems; suppose the guy in question was autistic? Depressed? Traditionally, we've chosen to deal with this in sentencing or by reducing the gravity of the offence (e.g. the distinction between murder and manslaughter on grounds of diminished responsibility).

It's also probably not desirable to rule on the basis of just how drunk (in the recollection of someone else who was also drunk and has a vested interest) someone was or wasn't. If you were on a jury, would you really want to send someone down for five years because the plaintiff reckons that, on balance, whilst pretty pissed, she reckoned he was quite sober?

[blackmetalbaz.livejournal.com]

If someone can actually give me a meanignful potential legal definition of what point of drunkeness it is that someone ceases to be able to give 'informed consent', then this discussion might actually be worth having. Until then, unfortunate as it is, there is no way in the world you could prosecute this guy, and any alteration to the law to try and define 'informed consent' will be meaningless.